June 3, 2014 By Stephen Klarich

Should Ice Cream Truck Vendors Be Subject to Criminal Background Checks?

ice Cream TrucksThe Los Angeles County Board of Supervisors is considering a proposal mandating criminal background checks of ice cream truck vendors and other operators of businesses catering to children.

The Board wants to strengthen regulations of vendors by requiring fingerprinting and a criminal history report for persons seeking a vendor license for a business that serves children. Often, says the Board, these types of vendors operate near parks, schools and libraries where children tend to gather unsupervised.

The purpose of such regulation is to provide for enhanced protection of children by attempting to limit their exposure to persons with convictions for sex crimes as well as other acts of abuse.

If we fail to screen children’s vendors, says Supervisor Don Knabe, “[w]e could be unknowingly permitting dangerous individuals to come into contact with innocent children.” Knabe introduced the screening measure and it has garnered unanimous support among Board members.2

Should Children’s Vendors Be Subject to Background Screening?

Who would argue against wanting to protect children from harm? The adoption of stricter measures designed to prevent children from exposure to people convicted of sex crimes is popular today with the public.

Furthermore, most employers voluntarily do background checks before they hire someone, especially when their employees are in contact with minors. Some are already required to do so. So why not impose mandatory criminal background checks for applicants interested in operating a business catering predominately to children?background check

Additionally, the idea of regulating children’s vendors is not new. In 2005, the state of New York enacted a law prohibiting registered sex offenders from operating ice cream trucks. In 2007, a Riverside County community discovered that a registered sex offender was operating an ice cream truck which prompted a protest by parents. This led to consideration of statewide legislation on this issue that ultimately failed to pass. In 2008, San Bernardino County adopted a local ordinance banning sex registrants from operating ice cream trucks.

In today’s atmosphere of heightened anxiety over more protection for children, this proposal sounds like a no-brainer. Perhaps, however, it is more “the sky is falling” argument by a local politician seeking voter approval on an emotionally charged topic.

California Law Already Regulates Sex Offender Jobs Where Children Are Involved

California state law already provides a measure of protection for children who could come into contact with sex offenders in an employment situation.

Penal Code section 290.95(c) prohibits anyone required to register as a sex offender because of a conviction for a crime where the victim was a minor under the age of 16 from being an employer, employee, or independent contractor, or acting as a volunteer, in a capacity where the registrant would be working directly and in an unaccompanied setting with a minor.

The law expressly defines “working directly and in an unaccompanied setting” to include “providing goods or services to children.” Presumably, this covers driving an ice cream truck.

Additionally, this law requires a person with a duty to register as a sex offender to disclose his or her status whenever he or she applies for a position, volunteer or paid, where contact with children is necessary on a frequent basis (Penal Code section 290.95(a).)

A violation of this law is a misdemeanor, punishable by up to six months in jail, a fine of up to $1,000, or both.

Do All Sex Offenders Pose a Continuing Danger to Children?

Not all registered sex offenders are a threat to children.
Not all registered sex offenders are a threat to children.

Not everyone convicted of a sex crime poses a threat to minors. Frequently, the media and lawmakers equate the term “sex offender” with “child molester” in order to drive public policy aimed at protecting children. On the contrary, many individuals are required to register as sex offenders for offenses that had nothing to do with minors or involved child molestation, for example:

  • Indecent exposure (Penal Code section 314);
  • Sexual battery involving an adult victim (Penal Code section 243.4);
  • Rape (including “date rape”) involving an adult victim (Penal Code section 261);
  • Spousal rape (penal Code section 262);
  • Unlawful oral copulation involving an adult victim (Penal Code 288a); and
  • Unlawful penetration with a foreign object involving an adult victim (Penal Code section 289).

Presuming that these individuals will prey upon children if they are permitted to run businesses catering to children is illogical and irrational. The proposal under consideration by the Los Angeles County Board of Supervisors is based on several false assumptions about registered sex offenders:

  • That they reoffend at a high rate;
  • That they all prey upon children;
  • That they prey upon children they do not know; and
  • That if they work in proximity to vulnerable populations, they are likely to reoffend.

None of these assumptions are accurate. The California Sex offender Management Board (CASOMB) reports that already low rates of re-offense decline considerably the longer a sex registrant remains offense free.3 CASOMB reports that after 10 to 20 years, it is no more likely that a non-high risk offender, including those convicted of a crime involving a minor victim, will commit a new sex crime than someone who has never sexually offended before in his or her lifetime.4

Over 90% of reported cases of child sexual abuse is committed by someone with whom the child already knows and not by a stranger. Overwhelmingly, the offender is a family member or close acquaintance to the child.5

Additionally, most sexual abuse involving minors occurs in the home, not in public. Furthermore, approximately 95% of all new sex crimes are committed by someone not already required to register as a sex offender.6

Although the proposal to background check children’s vendors is a well-intentioned attempt to protect children, employment restriction measures are unlikely to prevent future sexual assaults. On the contrary, these laws can be overbroad, which limits the employment opportunities of some individuals who pose no threat whatsoever to public safety.

What Does Wallin & Klarich Think?

Lifelong restrictions on where and with whom an ex-offender may associate tends to drive him or her into isolation, which in turn can be a destabilizing factor in that person’s successful reintegration back into a law-abiding lifestyle. Reliable housing, gainful employment and regular social support have all proven to increase the chances that an ex-offender does not reoffend.

We should be focusing on finding solutions that serve both the ex-offender’s and the public’s best interests. These do not have to be mutually exclusive goals.

If the Los Angeles County Board of Supervisor’s proposal to screen applicants for vendor’s licenses catering to children becomes a reality, we feel it is appropriate that the licensing agency should have discretion to consider the application of a potential licensee by evaluating what steps a person has taken to demonstrate rehabilitation in the event he or she has a sex or abuse conviction on his or her record.

Our attorneys at Wallin & Klarich do not think criminal background checks should automatically disqualify everyone convicted of a sex or abuse crime from receiving a license to operate a business catering to children.

Tell Us What You Think

Wallin & Klarich appreciates your comments. Please let us know what you think about this topic.

1. [http://en.wikipedia.org/wiki/File:Ice_Cream_Truck_Sydney_Australia_-_crop.png]
2. [Los Angeles Times: “L.A. County considering background checks on ice cream truck vendors”; http://www.latimes.com/local/lanow/la-me-ln-county-screening-ice-cream-truck-20140506-story.html]
3. [California Sex Offender Management Board: A Better Path to Community Safety: Tiering Background Paper; http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Background%20Paper%20FINAL%20FINAL%204-2-14.pdf]
4. [Id.]
5. [Id.]
6. [Id., at Endnote 2. See also American Psychological Association, 2008: “DOES A WATCHED POT BOIL? A Time-Series Analysis of New York State’s Sex Offender Registration and Notification Law”; http://ilvoices.com/uploads/2/8/6/6/2866695/63-sandler-freeman-socia-2008.pdf]

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